Legal Ethics Opinion No. 1425
Advertising and Solicitation: Publication of Article With
Misleading Implications
You have presented a hypothetical situation in which an attorney
holds himself out by letterhead and otherwise as possessed of
special expertise in a particular industry. At some point, the
principal trade association serving that industry terminates the
employment of one of its employees.
You further indicate that the attorney never represented the
association and had no access to any legal advice the association
may have received from its in-house or outside attorneys nor any
information concerning the decision-making process and the
relevant facts and circumstances that led the association to end
its employment relationship with the employee. Finally, you have
informed the committee that the attorney published an article in
the industry trade press stating, among other things, that the
association "fired [the employee] because people grossly
misunderstood what trade association activities violate the
antitrust laws."
You have asked the committee to opine whether, under the facts of
the inquiry, the conduct in question could be construed as false,
fraudulent, misleading, or deceptive under the Code of
Professional Responsibility.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 2-101(A) and DR 2-102(A) which provide
inclusively that a lawyer shall not use or participate in the use
of any form of public communication or in the use of a
professional notice or device if such communication, notice or
device contains a false, fraudulent, misleading, or deceptive
statement or claim.
The committee has previously opined that it is not per seunethical for an attorney to advertise that he specializes in a
certain area of law so long as the advertisement does not say
that he is a recognized or certified specialist. See LEO #923.
Your inquiry did not indicate how the attorney held himself out
by letterhead as being "possessed of special expertise in a
particular industry" nor did your inquiry indicate whether or not
the attorney advertised himself as being a recognized or
certified specialist. The committee opines that, unless the
attorney held himself out as possessing special expertise in the
particular industry when in fact he had no such expertise, such
advertisement would not be considered false, fraudulent,
misleading or deceptive, or violative of DR 2-102(A). See also
EC 2-16.
The committee believes that a lawyer should refrain from making
statements in public communications which reflect on another
attorney or firm's fitness to practice law, which are merely
self-laudatory, or which are not supported by factual assertions.
Such statements, if made solely to garner further business, may
mislead the layperson to whom they are directed and therefore
undermine the public's confidence in the legal system. See LEOs
#l297, l321, l406.
The committee is of the opinion that the publication of an
article in which an attorney states his opinion as to a
particular set of circumstances is not per se improper. See LEO
#l336. However, the committee recognizes that assessing the
motivation underlying the attorney's article which stated the
rationale for the employee's termination requires a factual
determination beyond the purview of this committee. If such a
factual determination resulted in a finding that, as you have
posited, the article was published for the purpose of
solicitation of legal employment and with the intent to "have
people believe that [the attorney] had full knowledge of the
relevant facts and circumstances concerning the association's
actions" when, in fact, he had no such information, such
statements and publications would then be misleading and
violative of DR 2-101 (A). See also ECs 2-10 and 2-ll.
Committee Opinion
September 16, 1991